1 UN Security Council Resolution 2462 (2019), para. 24.

2 See UN Security Council, Meeting on the Promotion and Strengthening of the Rule of Law in the Maintenance of International Peace and Security: International Humanitarian Law, 8499th Meeting, 1 April 2019, UN Doc. S/PV.8499.

3 The overlap typically occurs when an international or a non-international armed conflict involves an individual or an entity characterized as a “terrorist” under a relevant framework. Those frameworks may be rooted in one or more international or internal measures aimed at countering terrorism. Examples of such frameworks include the UN Security Council's terrorism-suppression sanctions against the Islamic State in Iraq and the Levant (ISIL), Al-Qaida and associated individuals, groups, undertakings and entities, as well as a diverse array of domestic anti-terrorism measures adopted by specific States. See UN Security Council Resolutions 1267 (1999), 1989 (2011) and 2253 (2015) et seq. Since 2001, these types of “joint” scenarios, marked by overlapping armed-conflict situations and counterterrorism contexts, have occurred in at least a dozen States and have involved the military, political or financial participation of dozens of additional States.

4 We focus on situations of armed conflict that double as counterterrorism contexts. While not our focus here, it is important to also bear in mind that impartial humanitarian activities may be taken in relation to disasters and situations of violence other than armed conflicts as well.

5 See, e.g., ICRC, Commentary on the Third Geneva Convention: Convention (III) Relative to the Treatment of Prisoners of War, 2nd edition, 2020, paras 825–65Google Scholar, available at: https://ihl-databases.icrc.org/ihl/full/GCIII-commentary (all internet references were accessed in September 2021).

6 In using this term, we mean a set of moral commitments and dispositions that are not necessarily coterminous in all respects with the definition of impartiality as an element of humanitarian activities in line with IHL and humanitarian-policy frameworks.

7 Fionnuala Ní Aoláin, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Impact of Measures to Address Terrorism and Violent Extremism on Civic Space and the Rights of Civil Society Actors and Human Rights Defenders, UN Doc. A/HRC/40/52, 1 March 2019.

8 See UN Security Council Resolution 1267 (1999) et seq. and Resolution 1373 (2001) et seq.

9 UN Charter (1945), Art. 25.

10 Accordingly, in this opinion note, our use of the term “terrorist” is not meant to weigh in on the validity of any specific international or domestic legal definition pertaining to such a characterization of a person, entity or form of conduct, nor do we mean to characterize the actual legal status of any particular individual or entity.

11 See, e.g., ICRC, Commentary, above note 5, paras 833–5.

12 See, e.g., Lindsay Hamsik and Lissette Almanza, Detrimental Effects: How Counter-terror Measures Impede Humanitarian Action – A Review of Available Evidence, InterAction, April 2021, available at: https://www.interaction.org/wp-content/uploads/2021/04/Detrimental-Impacts-CT-Measures-Humanitarian-Action-InterAction-April-2021.pdf; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, October 2019, pp. 59–61; available at: https://shop.icrc.org/download/ebook?sku=4427/002-ebook; Norwegian Refugee Council, Principles Under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action, 2018, available at: https://www.nrc.no/globalassets/pdf/reports/principles-under-pressure/nrc-principles_under_pressure-report-2018-screen.pdf; Jessica S. Burniske and Naz K. Modirzadeh, Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action, Harvard Law School Program on International Law and Armed Conflict (PILAC), March 2017, available at: https://pilac.law.harvard.edu/pilot-empirical-survey-study-and-comment; Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council, July 2013, available at: https://www.nrc.no/globalassets/pdf/reports/study-of-the-impact-of-donor-counterterrorism-measures-on-principled-humanitarian-action.pdf.

13 See, e.g., Lewis, Dustin A. and Modirzadeh, Naz K., Taking into Account the Potential Effects of Counterterrorism Measures on Humanitarian and Medical Activities: Elements of an Analytical Framework for States Grounded in Respect for International Law, Harvard Law School PILAC, May 2021, pp. 16–17Google Scholar, available at: https://pilac.law.harvard.edu/take-into-account-report-web-version.

14 A legal and policy debate has emerged concerning the possibility of endowing a non-judicial, technocratic security entity (such as the Counter-Terrorism Committee Executive Directorate, which is a special political mission of the UN Security Council) with the power to interpret and assess IHL compliance – including as relates to protections for impartial humanitarian services – through an institutional counterterrorism lens. See, e.g., Dustin A. Lewis, Naz K. Modirzadeh and Jessica S. Burniske, The Counter-Terrorism Committee Executive Directorate and International Humanitarian Law: Preliminary Considerations for States, Legal Briefing, Harvard Law School PILAC, March 2020; Dustin Lewis and Naz Modirzadeh, “Counterterrorism and Humanitarian Action: Will 2020 Be a Turning Point for International Humanitarian Law at the United Nations?”, Lawfare, 31 March 2020, available at: https://www.lawfareblog.com/counterterrorism-and-humanitarian-action-will-2020-be-turning-point-international-humanitarian-law.